Kafka-4-comma-club

When to use a comma can seem numbingly pedantic, particularly in our social media, abbreviated communication style.  And, everyone knows that lawyers can overdo the use of punctuation marks! (!!!!!!!!!!!!!!!!!!)

Did you know that bad punctuation can cost you over $10 million?  That’s the consequence adjudicated by the Court to Oakhurst Dairy in Maine, USA after dispute about overtime pay for truck drivers turned on the interpretation of a clause in the State law about overtime.

Last week’s decision in the Unites States Court of Appeals for the First Circuit highlights the financial consequence of a misplaced or non-use of a comma can have huge financial consequences in a business context.   The case started back in 2014 when truck-driving employees  sued the company for more than 4 years’ worth of overtime pay.  The State law requires workers to be paid 1.5 times their normal rate for each hour worked after 40 hours (per week), but provides certain exemptions.

A quick punctuation lesson before we proceed further to consider the Court decision:  in a list of 3 or more items – like “vegemite, bread and milk” – some folk would put a comma after bread, and others would leave it out.  Some of us feel very, very strongly about it.

This debate over a comma’s use is often a trivial one.  Maybe it’s important to your English teacher back at school but not so important in the real world, maybe?  For the truck drivers in this case it was very serious because their entitlement to overtime turned on the following State law, which says overtime rules do not apply to:

The canning processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

  •  Agricultural produce;
  •  Meat and fish products; and
  •  Perishable foods. 

Does the law intend to exempt the distribution of the 3 categories that follow, or does it mean to exempt packing for the shipping or distribution of them?

The delivery drivers distribute perishable foods, but they don’t pack the food into the boxes themselves.  Whether the drivers where the subject to a law that had denied them thousands of dollars each year depended entirely on how the sentence was read.

If a comma was added after “shipment,” it might have been clear that the law exempted the distribution of perishable foods.  The Court last week sided with the truck drivers, saying the absence of the comma produced enough uncertainty to rule in their favour.

This 3-year legal dispute brings into focus the long-running debate about the use of the Oxford comma.

The Oxford comma, also known as the serial comma, is a comma placed immediately before a conjunction such as “and” or “or” in a series of 3 or more terms, as in: “First, second, and third”.

Although not generally used, the Oxford comma is found in academic publications and in legal documents.   Some say that the extra comma is unnecessary, but supporters of the Oxford comma claim it helps to resolve ambiguity.

To close with a bit of humour, here is an example: “Over the Easter holidays I am going to take a photograph of my parents, the Prime Minister and Lady Gaga.”  Without the comma, I’m taking a picture of my parents, who are the Prime Minister and Lady Gaga!

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